The existence of differing treatments for tobacco cigarettes and their electronic counterparts is unconstitutional and illogical, writes Lalit Bhasin

The recent approval by the US Food and Drug Administration (FDA), in mid-October 2021, for marketing of e-cigarette products in that country revitalises the debate around the ban on e-cigarettes in India. The Indian government banned them via the enactment of the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale Distribution, Storage and Advertisement) Act, 2019. However, this is in contrast to the prevailing law for regular cigarettes and tobacco products.

E-smoke & mirrors? Bhasin Lalit
Lalit Bhasin
Society of Indian Law Firms

The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) does not put a ban on the production, supply, distribution and sale of cigarettes and tobacco products.

The COTPA was instead enacted to prohibit advertising and regulate production, supply and distribution of cigarettes and tobacco products. Provisions were also made to regulate sales of cigarettes and tobacco products, and government control was thus limited to prohibit cigarette and tobacco ads, and to regulate their trade and production.

Via a declaration under section 2 of the act, it was considered in the public interest that the government exercise more control of the tobacco industry.

The questions that arise for consideration are: (1) whether there was any need to bring in another law dealing with e-cigarettes; (2) whether the new law is constitutionally valid; and (3) whether it will subserve the purpose for which it was enacted.

It is pertinent to observe that even though nicotine is prohibited for use in any food item, the production and sale of tobacco cigarettes that contain nicotine is allowed as a legitimate business activity, although subject to certain conditions. So, what are the reasons, rationale and justifications for parliament to enact a law that prohibits production, distribution and sale of e-cigarettes?

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Lalit Bhasin, advocate and FCIArb, is president of the Society of Indian Law Firms. The views presented in this article are personal.